Woodward Estate: Woodward v Woodward

[2009] NSWSC 826

CITATION:	Woodward Estate - Woodward v Woodward [2009] NSWSC 826
HEARING DATE(S):	17 August 2009
JUDGMENT DATE :	17 August 2009
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	17 August 2009
DECISION:	Interim distribution approved.
CATCHWORDS:	SUCCESSION – INTERIM DISTRIBUTION – Sole beneficiaries agree on distribution of estate – dispute as to scope of mutual releases – further proceedings would not diminish estate – no reason to delay interim distribution.
CATEGORY:	Principal judgment
PARTIES:	Anthony Wilding Woodward (Plaintiff) Phillip Ronald Woodward (Defendant)
FILE NUMBER(S):	SC 112394/09
COUNSEL:	I.E. Davidson (Plaintiff)
SOLICITORS:	Teece Hodgson & Ward (Plaintiff)

PALMER J.

112394/09 Woodward Estate: Woodward v Woodward

JUDGMENT – Ex tempore

17 August, 2009

1 By a Summons filed on 21 July 2009, the Plaintiff sought a declaration that he and the Defendant had agreed to settle the administration of their deceased mother's estate upon certain terms. The Plaintiff and the Defendant are brothers and they are co-executors of the will of their deceased mother made 10 February 1995.

2 By a Notice of Motion filed on the same day, the Plaintiff sought an interim distribution of the estate in accordance with the alleged terms of settlement. It is clear from the correspondence between the parties’ solicitors that there is a long history of animosity between the Plaintiff and the Defendant concerning their deceased mother's financial affairs. However, this appears to be plain enough: that the parties, through their solicitors, agreed to divide the amount presently standing to the credit of the estate in certain proportions. That agreement was formulated and made by an exchange of correspondence beginning with a letter from the Defendant's solicitors to the Plaintiff's solicitors on 17 December 2008, responded to by the Plaintiff's solicitors on 22 December 2008 and answered again by the Defendant's solicitors by letter dated 24 December 2008.

3 The proportions in which the estate was to be divided between the two of them were as summarised in the Defendant's solicitors letter of 24 December 2008.

4 The parties had discussed, through their solicitors' correspondence, the giving of releases of claims made by the Defendant against the Plaintiff in respect of a number of transactions between the Plaintiff and the deceased over a period of years. The terms embodied in the 24 December 2008 letter included the sentence:

“The parties will give mutual releases to relinquish their rights in respect of these claims."

5 The words "these claims" referred to claims in respect of alleged gift of $200,000 in favour of the Plaintiff and two loans from the deceased to the parties (referred to as “the Guardianship Tribunal loans”).

6 The draft Deed of Settlement provided by the Plaintiff's solicitors purported to include a release between the parties extinguishing all claims of whatever character by each against the other. The Defendant has asserted that the agreement for settlement between them provides only for a release of the specific claims referred to in the 24 December 2008 letter.

7 It is this dispute which has provoked the Plaintiff to file his Summons on 21 July 2009 seeking a declaration that the parties have settled their disputes upon stated terms which include that the Plaintiff and the Defendant give mutual releases in respect of all claims between them.

8 By the Notice of Motion filed on the same day, the Plaintiff sought an the interim distribution of the estate pending determination of the major issue in contention, that is, the terms of the agreement between the parties as to releases.

9 The correspondence between the solicitors makes it plain that it is the scope of their mutual releases to be incorporated in the deed of settlement which is the sole issue in contention. The Defendant's solicitor's letter of 16 August 2009 refers to this issue as "the single issue in dispute".

10 It does not seem to me that there is any basis for delaying the distribution of this estate, at least on an interim basis, in the amounts sought by the Plaintiff pending resolution of the issue as to whether or not the Plaintiff is entitled to an all-claims release from the Defendant pursuant to an agreement for compromise.

11 If the Defendant is correct in his construction of what was agreed between the parties in the exchange of correspondence in December 2008 – and I should interpose by saying that, at least on a first reading of the correspondence and in the absence of argument on the point, there is much to commend the Defendant's contention in this regard – then the result can be only that the Defendant will, or may, pursue claims on behalf of his deceased mother's estate against the Plaintiff for reimbursement to that estate by the Plaintiff. In other words, if the releases are construed as the Defendant now contends, then the result can only be that the estate will be augmented rather than diminished by the successful prosecution by the Defendant of claims against the Plaintiff.

12 The administration of the estate has already long been delayed by reason of disputes between the parties ranging over quite a number of different matters which I do not need to go into at this stage. No good reason appears why the substantial portion of the estate should not now be distributed to the parties in the proportions which they have agreed in their settlement, and there should be retained in the estate an amount, still considerably in excess of $200,000, to provide for any further administrative costs that may properly be payable out of the estate.

13 Accordingly, I will make orders as sought in paragraphs 1, 2 and 3 of the Notice of Motion filed by the Plaintiff on 21 July 2009.

14 It is clear from the correspondence emanating from the Defendant's solicitor that the Defendant does not agree that these proceedings by the Plaintiff were necessary or appropriate. It is clear that the Defendant wishes to argue as to the propriety or necessity of these proceedings. The Defendant has been served with the Summons and the affidavits in these proceedings but, although called outside the court today, he has not appeared. I am satisfied that the proceedings have properly been drawn to the attention of the Defendant, both by service in accordance with the Supreme Court Rules, and also because of the very frequent correspondence between the Plaintiff's solicitors and solicitors acting on behalf of the Defendant. Although those solicitors say they are not instructed to accept service, it is inconceivable that this application has not reached the attention of the Defendant by a variety of means, and I have therefore deemed it appropriate to proceed in the absence of the Defendant today.

15 However, it is clear that the Defendant wishes to say something about the costs of the proceedings to date, that is, the costs of the motion, and I do not think it appropriate to make any costs order on the motion until the Defendant has had the opportunity of making such submissions as he wishes as to those costs.

16 For those reasons, although I will make the orders sought in paragraphs 1 to 3 of the Notice of Motion today, I will reserve the question of costs.

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